Tag: racism

Categories
Articles

Courtesy for Some, Misdemeanors for Others

Originally published at Cato Institute by John Pfaff | April 16, 2019

Case: Whren v. US

I am pleased to have this chance to share some thoughts on Sarah Seo’s new book, Policing the Open Road, about the relationship between our car-centered culture and policing. The fascinating historical story she tells—how the introduction of the mass-produced car, which seems so unrelated to criminal justice, led to fundamental changes in policing—alone makes her introductory essay worth reading. Like: why are the police trained to be polite? Because when they started policing roads, they suddenly came into contract with middle- and upper-class citizens, and their prior gruffness was no longer acceptable.

Perhaps more important, Seo’s book is part of a critical refocusing of our discussion of criminal justice reform, away from mass incarceration (where I spend most of my time) and towards mass punishment. Most reform discussions focus on prisons, and prison populations are the central metric by which we compare ourselves to other countries and our own past. But prisons, and the generally serious offenses that send people there, are just the tip of the punishment iceberg. While there are about 1.4 million people in prison, we send over 10 million to jails every year, and we make about 10 or 11 million arrests—most of which are for offenses that will never send someone to prison (only about 500,000 are for serious violence and 1.3 million for serious property crimes).

In other words, while our reform efforts tend to focus on felonies and prisons—on incarceration—almost everyone’s contact with criminal justice is through the far vaster, far more invisible, and far more disorganized world of Misdemeanorland (to steal Issa Kohler-Hausmann’s fantastic neologism). And as people like Kohler-Hausmann and Alexandra Natapoff (in her Punishment Without Crime) have recently shown, the overall impact of Misdemeanorland surely dwarfs that of the felony system, even if it receives only a fraction of the attention. Seo’s examination of policing automobiles is an important contribution to this, since she is looking at the single most common form of police-citizen interaction (at least for those who do not live in a small subset of heavily policed urban neighborhoods), and one of the few that easily and frequently crosses the lines of race and class.

In fact, it was this universality of traffic stops that jumped out at me, leading first to one troubling observation and then to one troubling question.

To start, Seo’s account complicates some aspects of the narrative we rely on to explain why our system is so punitive, especially at the misdemeanor level. Oftentimes discussions about criminal justice reform turn to the issue of “overcriminalization,” the idea that we criminalize too much conduct that should not be a crime in the first place. By and large, this is somewhat of a red herring in the context of felonies and prison populations; even if many of the people in prison need not be there (or be there for as long), almost all have often been convicted of conduct we all agree should remain criminalized (like assault or theft). But it is not a minor point when we get to Misdemeanorland.

Misdemeanorland is defined by overcriminalization. We have criminalized as misdemeanors all sorts of conduct that is unappealing and problematic but almost certainly not deserving of any sort of criminal punishment, like jaywalking, spitting on the street—or even non-reckless speeding. And even when the conduct these low-level laws target may seem criminally problematic, the laws are often drafted so broadly that they cover all sorts of behavior they surely shouldn’t.

Most discussions of this overcriminalization of Misdemeanorland frame it as the logical end-result of America’s deep-seated racism and classism. We quickly turn to Misdemeanorland to handle things like speeding or playing loud music because of an almost instinctive desire to punish the poor, people of color, and especially poor people of color, a response that crowds out less punitive ways to address these issues.

That instinct is no doubt significant, but Seo’s account introduces an important wrinkle to this take.

When states first stated regulating driving, the people driving were far more likely to be middle- or upper-class and white—they very people we think (correctly) that the system goes out of its way to treat better. Yet even here, our instinct was to regulate driving primarily through the criminal code and police enforcement. As Seo points out, the rise of the car led to wealthier Americans suddenly having encounters with the (rapidly expanding) police, not with local and state governments coming up with new non-police ways to regulate driving. And the statutory responses were often punitive as well. In Georgia, for example, every traffic violation is a misdemeanor carrying not only the risk of a fine but of jail time.

Now, to be absolutely clear, if wealthier white Americans and their families and friends were repeatedly subjected to the indignities of our massive misdemeanor system—arrested and cuffed in public, shipped off to Rikers for a few days, and then saddled with fines and fees and restrictions on liberty for nothing more than, say, crossing in the middle of the street or driving without a seatbelt on—we would surely see a massive push for changes, and Misdemeanorland would not be nearly as invisible to most people as it is.

But Seo’s historical account points out just how deeply held our punitive instinct is. It is an instinct that has waxed and waned, to be sure—our incarceration rates have been much lower in the past, even when national politics were surely more punitive—but Seo’s story of cars and policing and driving misdemeanors is an important reminder of just how broad that instinct can be.

Seo’s discussion of the normalcy of traffic stops also brought up for me an intriguing question about policing reform. While there is a broad bipartisan consensus for prison reform, such is not the case for policing, and I wonder if traffic policing, and the civility-in-policing norms it created, is one reason why. Despite new data about the remarkable number of Americans who know someone who has had at least some contact with prisons or jails, those two institutions remain generally alien to most people. When we hear that conditions are awful or abusive, many if not most voters do not filter that information through any personal experience.

Such is not the case, however, for policing. Far more people have had interactions with the police than with prison or jail, and most of those interactions have been via traffic stops—stops where the police, as Seo points out, have been trained to be more polite. So when people otherwise uninvolved with the criminal justice system hear about police brutality, aggressiveness, and harassment, they have personal experiences to turn to—experiences that do not line up with those accounts. “Well, all my interactions with the police have been polite and respectful” might be anecdotal reasoning, but it is often compelling anecdotal reasoning.

Obviously the solution isn’t to encourage police to be less civil when stopping suburban motorists. But by highlighting the unique ubiquity of police vehicle stops, Seo may have also shed light on why efforts to reform policing seem to face more of an upward battle than those to fix other aspects of our flawed criminal justice system.

Categories
Articles

The Overcriminalization of America

Originally published at Politico by Charles G. Koch & Mark Holden | January 7, 2015

As Americans, we like to believe the rule of law in our country is respected and fairly applied, and that only those who commit crimes of fraud or violence are punished and imprisoned. But the reality is often different. It is surprisingly easy for otherwise law-abiding citizens to run afoul of the overwhelming number of federal and state criminal laws. This proliferation is sometimes referred to as “overcriminalization,” which affects us all but most profoundly harms our disadvantaged citizens. 

Overcriminalization has led to the mass incarceration of those ensnared by our criminal justice system, even though such imprisonment does not always enhance public safety. Indeed, more than half of federal inmates are nonviolent drug offenders. Enforcing so many victimless crimes inevitably leads to conflict between our citizens and law enforcement. As we have seen all too often, it can place our police officers in harm’s way, leading to tragic consequences for all involved.

How did we get in this situation? It began with well-intentioned lawmakers who went overboard trying to solve perceived or actual problems. Congress creates, on average, more than 50 new criminal laws each year. Over  time, this has translated into more than 4,500 federal criminal laws spread across 27,000 pages of the United States federal code. (This number does not include the thousands of criminal penalties in federal regulations.) As a result, the United States is the world’s largest jailer— first in the world for total number imprisoned and first among industrialized nations in the rate of incarceration. The United States represents about 5 percent of the world’s population but houses about 25 percent of the world’s prisoners.

We have paid a heavy price for mass incarceration and could benefit by reversing this trend. It has been estimated that at least 53 percent of those entering prison were living at or below the U.S. poverty line when their sentence began. Incarceration leads to a 40 percent decrease in annual earnings, reduced job tenure and higher unemployment. A Pew Charitable Trust study revealed that two-thirds of former inmates with earnings in the bottom fifth upon release in 1986 remained at or below that level 20 years later. A Villanova University study concluded that “had mass incarceration not occurred, poverty would have decreased by more than 20 percent, or about 2.8 percentage points” and “several million fewer people would have been in poverty in recent years.”

African-Americans, who make up around 13 percent of the U.S. population but account for almost 40 percent of the inmates, are significantly affected by these issues. According to Harvard sociologist Bruce Western: “Prison has become the new poverty trap. It has become a routine event for poor African-American men and their families, creating an enduring disadvantage at the very bottom of American society.” 

Reversing overcriminalization and mass incarceration will improve societal well-being in many respects, most notably by decreasing poverty. Today, approximately 50 million people (about 14 percent of the population) are at or below the U.S. poverty rate. Fixing our criminal system could reduce the overall poverty rate as much as 30 percent, dramatically improving the quality of life throughout society—especially for the disadvantaged.

To bring about such a transformation, we must all set aside partisan politics and collaborate on solutions. That is why we have partnered with the National Association of Criminal Defense Lawyers for more than 10 years to bring about positive changes in our justice system.  

We support a five-step approach to criminal justice reform:

First, “do no more harm.” Legislators must resist the temptation to criminalize activities that do not fit a common-sense understanding of what is a “crime.” Criminal laws should not impose liability if the accused did not knowingly and willfully intend to commit the bad act. This explosion of criminal laws has led to imposing liability on activities that ordinary citizens would have no reason to believe would be criminal such as converting a wild donkey into a private donkey, bathing in the Arkansas Hot Springs National Park without a doctor’s note, and agreeing to take mail to the post office but not dropping it off. It has led to criminal liability for amateur arrowhead collectors who had no idea their hobby could be a federal crime, as well as criminal charges and  a conviction for a former Indianapolis 500 champion who got lost while snowmobiling during a blizzard and unwittingly ended up on federal land.  

Second, we must address prosecutorial abuses—especially in the discovery and grand jury processes. Even the late Senator Ted Stevens fell victim to prosecutorial abuse in his trial when during the discovery process, federal prosecutors systematically concealed evidence that supported the senator’s defense and testimony. Prosecutors must disclose all evidence favorable to the accused to ensure that every American should be treated equally and fairly under the law, whether the accused is a disadvantaged urban teenager or a wealthy corporate executive.

Third, we must ensure that all those charged with a crime receive their Sixth Amendment right to representation by a lawyer. Inadequate or no legal representation results in devastating consequences for criminal defendants and their families.

Fourth, end unduly harsh sentences and resulting disparities by eliminating mandatory minimum sentences that dictate punishment unrelated to the nature or harm of the underlying crime and facts. We must honor the ideal of the punishment fitting the crime by allowing judges to exercise discretion. 

Finally, after a sentence is served, we should restore all rights to youthful and non-violent offenders, such as those involved in personal drug use violations. If ex-offenders can’t get a job, education or housing, how can we possibly expect them to have a productive life? And why should we be surprised when more than half of the people released from prison are again incarcerated within three years of their release?

Hopefully, every lawmaker and committed citizen will support these proposed reforms.  Overcriminalization leads to mass incarceration, undermines race relations and ultimately keeps more people in poverty. We believe the proposed reforms will improve well-being for all Americans, especially the most disadvantaged.

Categories
Articles

Overcriminalization Hits the Barbershop

Originally published at National Review by Josh Barro | November 8, 2010

The Orlando Sentinel reports that the Orange County (Florida) Sheriff’s Office has been enforcing Florida’s barber licensing requirements in an unusually aggressive way: conducting armed raids of barbershops, handcuffing barbers while their records are checked, and searching (without warrants) for drugs and other contraband. Adding to the sensitivity of such operations, all the establishments raided to date cater to a primarily black or Hispanic clientele:

In “sweeps” on Aug. 21 and Sept. 17 targeting at least nine shops, deputies arrested 37 people — the majority charged with “barbering without a license,” a misdemeanor that state records show only three other people have been jailed in Florida in the past 10 years.

The operations were conducted without warrants, under the authority of the Department of Business and Professional Regulation inspectors, who can enter salons at will. Deputies said they found evidence of illegal activity, including guns, drugs and gambling. However, records show that during the two sweeps, and a smaller one in October, just three people were charged with anything other than a licensing violation…

[Barbershop owner Brian] Berry said deputies entered his store and told his barbers to stop cutting and put their hands behind their backs. As barbers sat on the ground in handcuffs, he said, deputies removed his customers — including children — from the store, and began searching workstations and checking licenses without explanation.

Barbers and witnesses at several shops told the Orlando Sentinel that deputies shouted and cursed during the raids, demanding the location of illegal drugs, which they searched for extensively. They never found more than misdemeanor amounts of marijuana at eight of the nine shops they raided.

If you were a police detective who wanted to raid my office, you would have to go before a judge and show probable cause to believe that I was committing a crime. But because barbers in Florida (and in most states) are subject to licensing requirements, they must agree to submit to inspections on demand by the Department of Business and Professional Regulation—which can then join up with local law enforcement to conduct warrantless searches that cover matters beyond barber licensing issues. Essentially, to be a barber in Florida, you must agree to give up your Fourth Amendment rights at work.

I’d never heard of a case like this involving barbershops before, though the Orlando Sentinel story talks about similar raids earlier this decade in Moreno Valley, California. Where you most often hear about raids that spill over from licensing issues to more general law enforcement is in bars.

Texas, in particular, has a reputation for aggressively raiding liquor licensees. Starting in 2005, the Texas Alcoholic Beverage Commission would jointly raid a bar along with local law enforcement, with no need for a warrant as the raid is in service of the liquor license. Mostly, the purpose of the raids was to issue citations for overservice and for public intoxication—yes, for the crime of being drunk in a bar. TABC argues that these arrests benefit public safety, as drunk patrons may drive home, though TABC does not have to prove that a person intends to drive before arresting him or her.

TABC drastically scaled back its bar raid program in 2006, as a result of a public outcry. The case that most undermined the TABC’s public position was one woman’s public intoxication arrest at an Irving, Texas hotel bar. Says the Austin American-Statesman:

The arrest arguably did not prevent a DWI; the woman had a room at the hotel that night. The TABC agent contended she was a danger to herself because she had no one to escort her to her room.

The point of this story is that the only brake on the abuse of warrantless bar inspections has been public opinion; TABC is still legally empowered to raid bars at any time for any reason, and continues to do so on a smaller scale. Indeed, an aggressive raid on a gay bar in Fort Worth in 2009 (on the 40th anniversary of the Stonewall Riots, no less) led to another public outcry. As with barbershops, the “license inspection” excuse deprives bar owners, employees and patrons of their Fourth Amendment rights—and they must rely on public opinion to restrain state officials from exploiting this opening.

Debates over business licensing usually weigh the value of protection from unqualified service providers against the cost of erecting barriers to entry. Examined this way, some license requirements look ridiculous even if you assume that licensing officials will act benevolently and efficiently; floristry licenses in Louisiana are a good example.

But it is also important to consider the costs that are likely to arise when a government misuses its license power. Licensing bodies can use their powers to bar qualified operators from entering new markets, to punish politically disfavored individuals or groups, or (as seen in the above cases) to circumvent the Fourth Amendment. The potential for abuse puts another thumb on the scale against business licensing.

The simplest way to stop licensing-related erosion of Fourth Amendment rights is to reduce the number of activities that require a license. Unfortunately, this is inappropriate in some cases, and politically infeasible in others. Personally, I oppose liquor licensing; I believe that liquor sales should be regulated through zoning and generally applicable laws, in the same way that governments regulate most other kinds of retail businesses. But the regime of liquor licensing is politically entrenched and unlikely to go away.

Assuming liquor licensing is retained, the warrantless inspection powers of liquor inspectors should be limited to civil matters, with Fourth Amendment protections preserved for matters such as public intoxication. And meanwhile, Texas should repeal its overbroad public intox law.

But with barbering, the solution is simple: barber licensing should be abolished (as has long been advocated by CAP’s Matt Yglesias). Hell, I’d get rid of the entire Florida Department of Business and Professional Regulation, which also conducts the important business of licensing auctioneers, cosmetologists, interior designers, landscape architects, talent agents and yacht brokers and salespeople, among others.

Barbershops could still be subject to health and safety inspections, much in the way that restaurants are in most jurisdictions—restaurant cleanliness matters, but you don’t need a license to run a restaurant*, nor do you have to put in a certain number of hours at culinary school. And barbershop inspections should be limited to addressing health and safety issues, not enforcing laws more broadly.